ORDER
S.S. Subramani, J.
1. Tenant in R.CO.P. No. 6 of 1993 on the file of Principal District Munsif, Dindigul is the revision petitioner. This revision petition is filed under Article 227 of Constitution of India.
2. Respondent herein filed an eviction petition on the ground that the petitioner/tenant defaulted in payment of rent. In the counter statement, this allegation is denied. But when the matter came up for trial, parties settled the matter and on compromise, orders has been passed. Tenant was given 21 months time to vacate the premises and in case he fails to surrender vacant possession, landlord is allowed to take possession through court. When the tenant did not surrender vacant possession by the end of the term, landlord filed an execution petition in E.P. No. 197 of 1998 for getting possession of the building. An objection was filed in the lower court and the tenant wanted further six months time to surrender possession. Lower court did not allow it and ordered delivery of the property. The same is challenged in this revision petition under Article 227 of Constitution of India.
3. One of the main ground submitted by the learned Counsel for the petitioner is that the compromise itself is not valid. It has not been signed by the parties but only by their counsel, and therefore it violates Order 23, Rule 3 of Code of Civil Procedure. It is also submitted that there is no ground made out for eviction and unless Rent Controller enters satisfaction on the grounds of eviction, eviction should not be ordered. It is contended that the compromise decree is of nullity.
4. Learned counsel for the petitioner submitted that after amendment to the Code of Civil Procedure in the year 1976, a compromise will have to be signed both by the parties and their counsel and if it is not so signed it is invalid. Learned counsel stressed that compromise must be in writing and signed by the parties, so incorporated by virtue of 1976 Amendment to Code of Civil Procedure shows that the authority of the counsel without signature of the parties, compromise could not be entered.
5. Relevant portion of the Rule on which emphasis was laid by the learned Counsel for the petitioner read thus:
Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit).
[Italics supplied]
6. In Byram Pestonji Gariwala v. Union Bank of India (1992) 1 S.C.C. 31, the interpretation as now put forward by the learned Counsel came up for consideration before the Honourable Supreme Court and their Lordships repelled the contention. In paragraphs 38 and 39 of the judgment, the Honourable Supreme Court held thus:
38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in court by elimination of uncertainties and enlargement of the scope of compromise.
39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of nonresident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by Vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.
In view of this declaration of Law by the Honourable Supreme Court, the contention of learned Counsel for the petitioner is only to be rejected.
7. The role of a counsel and extended nature of his implied authority came up for consideration before a Full Bench of Kerala High Court in the decision Souri Nayakam v. A.N. Menon 1968 K. L.T.I (F.B.). The Honourable Supreme Court approved the observation of the Full Bench of Kerala High Court in paragraph 26 of the judgment cited supra, which read thus:
Courts in India have consistently recognised the traditional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients. Speaking for a Full Bench of the Kerala High Court in Chengan Souri Nayakam v. A.N. Menon, K.K. Mathew J. (as he then was) observed: (A.I.R. p. 215) “The construction of a document appointing an agent is different from the construction of a vakalath appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crystallised through usage. It is on a par with a trade where the usage becomes an additional terms of the contract, if not contrary to the general law or excluded by express agreement.
About the special position of the advocate, the learned Judge stated: (A.I.R. p. 216)
…Counsel has a tripartite relationship; one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty. Counsel’s duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out as practising, however unattractive the case or the client.
Their Lordships further declared that the amendment of 1976 in the Code of Civil Procedure has not curtailed the implied authority of the counsel either to confess Judgment or in entering into compromise. In paragraph 30 of the judgment, Their Lordships further held thus:
There is no reason to assume that the legislature intended to curtail the impliedauthority of counsel, engaged in the thick of proceedings in court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject matter of the suit. The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest. There is no such declaration of policy or indication of intent in the present case. The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active bar with freedom to maneuver with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the inquisitorial traditions of the “Civil Law’ of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant. (See Rene Davit, English Law and French Law — Tagore Law Lectures, 1980), The Civil Law’ is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language; and there is no indication, whatever, that Parliament was addressing itself to the task of as milating or incorporating the rules and practices of that system into our own system of judicial administration.
And finally, their Lordships concluded in paragraph 40 of the judgment thus,
Accordingly, we are of the view that the words in writing and signed by the parties’, inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of 0.3, Rule 1, C.P.C. any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made Or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:
Provided that any such appearance shall, if the court so directs, be made by the party in person.
In view of this declaration of Law by the Honourable Supreme Court, I do not think that the submission made by the counsel for the petitioner could be accepted.
8. Some more circumstances also must be taken into consideration to find against petitioner. The compromise gives tenant 21 months time to surrender vacant possession. When the tenant did not surrender vacant possession as agreed, landlord filed execution petition. In the objection raised to execution petition, petitioner has no case that the advocate was not authorised to enter into compromise, In the objection, petitioner wanted only further six months time to surrender vacant possession. Apart from the same in the joint endorsement, court has recorded thus,
Joint endorsement made by both the parties.
It is not referring to counsel. Only in this revision petition, authority of counsel is challenged. It is only an after-thought and after availing entire period that was given under compromise, petitioner cannot challenge the same as without authority. First contention of the learned Counsel for the petitioner is therefore rejected.
9. Once it is found that the compromise is validly entered and counsel also has authority to enter into compromise, further question arises is whether that could be declared as null and void since a specific finding is not entered on the grounds of revision.
10. Here again, authority of counsel requires consideration. Merely because an advocate files vakalath, he is not expected to argue or take a contention which cannot be sustained. If he is entitled to enter compromise or even to confess Judgment, it follows that he is also entitled to give up those contentions which cannot be legally sustained. I feel, in this case, advocate has taken only that view of the matter, When the landlord contended that rent has not been paid and there is wilful default, thought it is seriously disputed in the counter, counsel thought of confessing to Judgment, since his contention may not stand. Landlord contended that tenant has defaulted in payment of rent from June, 1992, July, 1992 rent was paid only on 25.7.1992 and July, 1992 to September, 1992 rent was not paid. The defence is taken in paragraph 4 of the counter. Contention that is taken is discharge of rent and it is also contended that usually whenever rent is paid, it would be endorsed in the pocket book retained by landlord. Since endorsement was not made in July, 1992 and offer was made in August, 1992, for which landlord gave only evasive reply. Landlord also refused to receive rent. Therefore, he sent the rent for the month of July, 1992 by M.O. on 4.9.1992, which was refused to be accepted by landlord.
11. Above contention is an admission that the rent was not paid. But an explanation is offered why it was not paid. Probably, counsel might have thought that this contention may not stand before a court of Law and instead of getting an adverse decision and taking into consideration the best interest of the client, he bargained 21 months time and obtained consent order for eviction. Merely because the order does not say that tenant committed wilful default and therefore liable to be evicted, it does not follow that Rent Controller has not applied its mind. The court can take into consideration the pleadings of the parties and on that basis come to the conclusion, whether the Rent Controller had applied his mind while passing the order. The time at which compromise was entered is also a relevant factor. The Law presumes that an order parsed by Rent Controller even on compromise is made after application of mind though not expressly stated in the order.
12. This revision is filed under Article 227 of Constitution of India. As I said, 21 months time was granted under compromise and in execution, tenant wanted further six months time. By the time this revision is disposed of, even the six months time has also lapsed. So what all petitioner wanted, he achieved. To set aside the compromise on this technical argument, will put the landlord to great hardships. Unless manifest injustice is shown, interference under Article 227 of Constitution of India is not called for. In this case, I do not find any injustice when petitioner herself achieved all that she wanted.
13. In the result this civil revision petition is dismissed. No costs. Consequently, C.M.P. No. 15730 of 1998 is closed.